If a Mississippi city employee's brother gets elected to the city council, can the employee still be promoted, and can a board fix a nepotism mistake with a nunc pro tunc minute entry?

Plain-English summary

The City of Columbus had an employee working as a clerk. Her brother was later elected to the City Council. In 2017, the AG had advised that her existing employment fell within the nepotism statute's exception for employees who held the position before the kinsman became the hiring authority. So she could continue working.

After 2017, she was promoted to another clerk position within the same department. The brother recused himself when the council voted on it. Someone then raised a concern that the promotion violated the nepotism law.

The City asked the AG to reconsider the line of opinions saying a covered employee cannot be promoted or transferred after a relative joins the appointing authority. Four questions:

1. Does the AG still hold that promotion or transfer voids the nepotism exception?
2. If yes, did the AG's failure (in 2017) to tell the city how to avoid future violations create any protection?
3. If no on protection, does a nunc pro tunc minute entry rescinding the "promotion" language cure any violation?
4. If the answers to 1, 2, and 3 are unfavorable, must the employee be returned to her prior position, or is termination the only option?

The AG answered:

On Question 1, yes, the rule still holds. Section 25-1-53 prohibits hiring a person within the third degree of kinship to the appointing authority for any of five positions: officer, clerk, stenographer, deputy, or assistant. The statute's exception lets a person already in one of those positions stay there when a kinsman becomes the appointing authority. But the exception does not extend to subsequent promotion or transfer to another covered position. The Mississippi nepotism statute is "somewhat narrow" but applies to any of the five enumerated positions. The recusal of the relative on the appointing body does not cure the violation; the office's prior opinions are unanimous on that point.

On Question 2, no. The 2017 question about avoiding future violations was conditioned on an affirmative answer to a separate question; because the AG answered the predicate question negatively, the future-violation question was moot. The 2017 opinion did refer the requester to the Ethics Commission. Section 7-5-25 provides immunity for relying on AG opinions actually issued on a question; it does not extend immunity for matters the AG did not opine on.

On Question 3, depends. A nunc pro tunc order corrects a record that does not accurately reflect the action actually taken. It cannot retroactively approve action that was taken (a 1995 Blackwell opinion is clear on this). Whether a nunc pro tunc is appropriate here is a factual question for the City Council. If the Council determines the minute entry inaccurately recorded the action (i.e., what actually happened was a job-duty change, not a promotion to another covered position), and rectifies the record to reflect the actual action, no nepotism violation occurred. If the Council determines that what actually happened was a promotion, a nunc pro tunc cannot wish that away.

On Question 4, moot because Question 3 was not answered in the negative.

What this means for you

For Mississippi city attorneys

The opinion reaffirms a settled rule: under Section 25-1-53, a person already serving in one of the five enumerated positions (officer, clerk, stenographer, deputy, or assistant) may continue in that position when a relative within the third degree becomes the appointing authority, but may not be appointed, promoted, or transferred to another of the five positions while the relative is part of the hiring authority. The opinion states the recusal of the relative "is not relevant, in any way, to whether the Nepotism Law is violated."

On the past promotion in this case, the opinion is explicit that it cannot rule: an AG opinion answers prospective questions under Section 7-5-25 and "can neither validate nor invalidate past action," so the office was "unable to opine on the legality of any promotion, appointment, or transfer already made by the Council."

For boards of aldermen and city council members

Under the opinion, the prohibition turns on the structural relationship between the appointee and the appointing body, not on any single member's vote. The opinion holds that a board member's recusal does not cure a nepotism violation. The existing-employment exception protects only the relative's existing position; it does not reach a later promotion or transfer to another covered position.

For Mississippi municipal employees

The opinion holds that an employee already in one of the five covered positions keeps that position when a relative joins the appointing authority, but cannot be promoted or transferred to another covered position while the relative remains on the appointing-authority body. The five covered positions are officer, clerk, stenographer, deputy, and assistant.

For municipal human resources officers

The opinion does not address HR procedures. What it holds is the substantive rule: a personnel action moving a relative of an appointing-authority member into or between the five covered positions is prohibited, and the relative's recusal does not change that.

Common questions

Q: Which relationships does the nepotism statute reach?
A: The statute reaches anyone "related by blood or marriage within the third degree, computed by the rule of the civil law," to the appointing authority or any member of the board with hiring power. The opinion quotes that language but does not catalog which specific relatives fall inside the third degree.

Q: What positions are covered?
A: Five: officer, clerk, stenographer, deputy, and assistant. The opinion calls the statute "somewhat narrow" because it reaches only these positions.

Q: Does the relative's recusal fix the problem?
A: No. The opinion states the office "has repeatedly opined that a violation of the anti-nepotism statute will occur regardless of whether a board member recuses himself," and that recusal "is not relevant, in any way, to whether the Nepotism Law is violated."

Q: The employee was already working there before the relative was elected. Why is a promotion still barred?
A: The exception lets an existing employee continue in that position when a relative becomes the appointing authority, but the opinion holds it does not extend to being "appointed, promoted, or transferred to any of the five enumerated positions" after that.

Q: What is a nunc pro tunc minute entry, and can it cure a violation?
A: The opinion describes a nunc pro tunc order as one whose "purpose is to correctly evidence a previous action which was not accurately recorded." It cannot be used "to retroactively approve actions." Whether the minutes inaccurately recorded what the Council actually did is a factual question the opinion says only the Council can resolve.

Q: Did the AG decide whether the City's promotion was lawful, or what should happen to the employee?
A: No. The opinion answers only the legal questions it could reach. It states it cannot opine on the legality of action already taken, and it found the fourth question (whether to return the employee to her prior position or terminate) moot because it did not answer the nunc pro tunc question in the negative.

Q: What about the Ethics Commission?
A: The opinion notes that the office's earlier 2017 opinion to the City referred it to the Mississippi Ethics Commission "regarding potential conflicts of interest." This opinion addresses only the nepotism statute, not the ethics laws.

Q: Does Section 7-5-25 immunity protect the officials here?
A: The opinion states Section 7-5-25 provides civil and criminal immunity "to the recipient of an official Attorney General's opinion" under certain circumstances, but the office was "not aware of any such treatment for matters upon which this office has not opined."

Background and statutory framework

Section 25-1-53 reads, in relevant part: "It shall be unlawful for any person elected, appointed or selected in any manner whatsoever to any state, county, district or municipal office, or for any board of trustees of any state institution, to appoint or employ, as an officer, clerk, stenographer, deputy or assistant who is to be paid out of the public funds, any person related by blood or marriage within the third degree, computed by the rule of the civil law, to the person or any member of the board of trustees having the authority to make such appointment or contract such employment as employer. This section shall not apply to any employee who shall have been in said department or institution prior to the time his or her kinsman, within the third degree, became the head of said department or institution or member of said board of trustees . . . ."

The three-part analysis the AG applies:

1. Are the parties related within the third degree?
2. Is the relative who is a public official the appointing authority?
3. Is the position one of the five enumerated?

If the answer to any one is no, the statute does not apply.

The exception covers an employee who was already in the position before the kinsman became the appointing authority. The AG's settled position, going back decades (Williams 1989, Floyd 1989, Andrzejewski 2002, Moore 2003, Hathorn 2007, Ausbern 2014, Turnage 2014, Harness 2016, Blackmon 2019, Scanlon 2021), is that the exception does not extend to subsequent promotions or transfers to another covered position.

The recusal-does-not-cure rule is also settled (Gibson 2013, Turnage 2014, others).

The 2021 Turnage opinion was a request to reconsider this entire line. The AG declined to reconsider and reaffirmed the long-standing rule.

The nunc pro tunc analysis (Miller 2012, Chamberlin 2004, Blackwell 1995) reinforces that minute entries can be corrected to reflect actual action, but actual action cannot be retroactively rewritten. Whether the action was actually a promotion or merely a duty reassignment is a factual question for the council.

Section 7-5-25 immunity attaches to officials who follow an AG opinion that addresses their question. It does not retroactively cover them on questions the AG did not reach (here, the predicate-mooted future-avoidance question in 2017).

Citations and references

Statutes:
- Miss. Code Ann. § 7-5-25, AG opinions limited to prospective state law; civil and criminal immunity for reliance on issued opinions
- Miss. Code Ann. § 25-1-53, nepotism prohibition for public employment

Prior AG opinions cited:
- MS AG Op., Andrzejewski (May 3, 2002)
- MS AG Op., Ausbern (Oct. 10, 2014)
- MS AG Op., Baum (June 7, 2019)
- MS AG Op., Blackmon (Aug. 30, 2019)
- MS AG Op., Blackwell (Mar. 2, 1995)
- MS AG Op., Brock (Nov. 8, 2019)
- MS AG Op., Chamberlin (Jan. 23, 2004)
- MS AG Op., Floyd (Sept. 8, 1989)
- MS AG Op., Gibson (Feb. 1, 2013)
- MS AG Op., Gilfoy (Aug. 26, 1993)
- MS AG Op., Harness (Sept. 16, 2016)
- MS AG Op., Hathorn (Mar. 9, 2007)
- MS AG Op., Magee (Aug. 29, 2008)
- MS AG Op., Miller (Nov. 16, 2012)
- MS AG Op., Moore (Aug. 29, 2003)
- MS AG Op., Scanlon (May 3, 2021)
- MS AG Op., Turnage (Apr. 25, 2014)
- MS AG Op., Turnage (July 21, 2017)
- MS AG Op., Williams (Dec. 21, 1989)

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2021/11/J.Turnage-October-28-2021-Nepotism.pdf

Original opinion text

October 28, 2021

Jeffrey J. Turnage, Esq.
Attorney for the City of Columbus
Post Office Box 1366
Columbus, Mississippi 39703-1366

Re: Nepotism

Dear Mr. Turnage:

The Office of the Attorney General has received your request for an official opinion.

Background

Your request states that you are asking this office to reconsider a line of opinions stating that an individual may not be promoted or transferred to another position enumerated in Section 25-1-53 after his or her kinsman, within the third degree, becomes the hiring authority.

The situation about which you ask involves an employee working as a clerk whose brother was subsequently elected to the Columbus City Council (the "Council"). You originally sought an opinion from this office regarding whether a nepotism violation would occur if the employee continued in her current position while her brother assumed his role on the City Council. In our response, we opined:

We are of the opinion that the employment described in your letter falls under the exception set out in Mississippi Code Annotated Section 25-1-53, the nepotism statute, that the prohibition prescribed therein does not apply to any employee who shall have been employed at the time his or her kinsman became a member of the governing board.

MS AG Op., Turnage at *1 (July 21, 2017). In line with previous opinions, we explained that an employee who currently holds one of the five positions enumerated in the nepotism statute may continue in that position when a relative within the third degree becomes the hiring authority. Additionally, we directed you to the Mississippi Ethics Commission for assistance with potential conflicts of interest.

According to your request, since the issuance of that opinion, the employee has been promoted to another clerk position within her same department, with her brother recusing himself when her employment was discussed and voted on by the Council. You state that it has been brought to your attention that this may be a nepotism violation.

Questions Presented

In asking for reconsideration of the above-referenced line of opinions, you present four (4) specific questions.

1. Does your office still contend that promotion or transfer voids the exception to the nepotism prohibition, and if so, what is the basis for this opinion, other than your own past opinions?

2. Assuming the answer to Question 1 is in the affirmative, does the fact that your office did not advise us how to avoid violations of the nepotism law after request, create any protections or insulation as to the action taken with regard to the Council's approval of a change in the employee's job duties?

3. If your answer to Question 2 was in the negative, please advise us on whether a nunc pro tunc minute entry rescinding the "promotion" language and describing it as an assignment of new duties within the department "cures" any nepotism violation.

4. If your answer to Question 1 is in the affirmative and your answer to Questions 2 and 3 are in the negative, may the City return the employee to the position she held before the change of her job duties or is termination the only option for this employee?

Brief Response

1. Yes. As previous opinions have opined, an individual may not be promoted or transferred into one of the five prohibited positions enumerated in Section 25-1-53 when a relative is part of the hiring authority.

2. No. Your 2017 question about future nepotism violations was conditioned upon an affirmative response to another question, which we answered in the negative, making your future violations question moot.

3. The purpose of a nunc pro tunc order is to correctly evidence a previous action which was not accurately recorded. Whether a nunc pro tunc order is appropriate is a determination that must be made by the Council.

4. Please see our response to Question 3.

Applicable Law and Discussion

As a threshold matter, official opinions of this office are issued on prospective questions of state law pursuant to Mississippi Code Annotated Section 7-5-25. It is well-established that an Attorney General's opinion can neither validate nor invalidate past action. MS AG Op., Magee at 1 (Aug. 29, 2008); MS AG Op., Brock at 1 (Nov. 8, 2019) (citing Miss. Code Ann. § 7-5-25). Accordingly, this office provides the following guidance for future application only, and we are unable to opine on the legality of any promotion, appointment, or transfer already made by the Council.

Section 25-1-53 governs nepotism for public employees, providing as follows:

It shall be unlawful for any person elected, appointed or selected in any manner whatsoever to any state, county, district or municipal office, or for any board of trustees of any state institution, to appoint or employ, as an officer, clerk, stenographer, deputy or assistant who is to be paid out of the public funds, any person related by blood or marriage within the third degree, computed by the rule of the civil law, to the person or any member of the board of trustees having the authority to make such appointment or contract such employment as employer. This section shall not apply to any employee who shall have been in said department or institution prior to the time his or her kinsman, within the third degree, became the head of said department or institution or member of said board of trustees . . . .

Miss. Code Ann. § 25-1-53 (emphasis added). The final sentence in this quoted language provides a limited exception to the nepotism restriction.

In describing the analysis required to determine whether a violation of Mississippi's nepotism statute has occurred, this office has opined in the following manner:

In determining whether the nepotism statute applies, it is necessary to apply a three-part analysis. One, are the parties related within the third degree? Two, is the relative who is a public official the appointing authority? Three, is the position one of the five enunciated positions in the statute? If the answer to any one of these questions is no, the nepotism statute does not prohibit the appointment or employment of the individual in question.

MS AG Op., Scanlon at 2 (May 3, 2021) (citing MS AG Op., Gilfoy at 1 (Aug. 26, 1993)). Section 25-1-53 is somewhat narrow in that it only prohibits the hiring of a person who is related by blood or marriage within the third degree to the appointing authority, and this prohibition only applies to five specific positions: officer, clerk, stenographer, deputy or assistant.

This office has consistently maintained that an individual serving in one of the five positions enumerated in Section 25-1-53, whose family member subsequently becomes the appointing authority, is prohibited from being appointed, promoted, or transferred to any of the five enumerated positions. See, e.g., MS AG Op., Blackmon at 3 (Aug. 30, 2019) ("An individual may not be subsequently promoted to another prohibited position after his relative becomes the hiring authority."); MS AG Op., Williams at 1 (Dec. 21, 1989) ("The statute allows someone already employed or appointed to an otherwise prohibited position to continue in that position when their relative subsequently becomes a member of the appointing or employing authority. However that employed or appointed person may not be transferred or promoted to another prohibited position after the relative has become a member of the appointing or employing authority."); MS AG Op., Andrzejewski at 1 (May 3, 2002).

Applying this principle, under facts similar to those presented in your request, this office has found that a violation of the nepotism statute would occur if a clerk, employed prior to his or her kinsman within the third degree becoming the appointing authority, was appointed or promoted to another clerk position. MS AG Op., Hathorn at 1 (Mar. 9, 2007) (citing MS AG Op., Ausbern (Oct. 10, 2014) ("We have previously opined that a violation of the nepotism statute (25-1-53) would occur if a deputy clerk were promoted to the position of city clerk while her sister is a member of the Board of Aldermen and that this would be true regardless of whether the sister recuses herself from any votes on the matter."); MS AG Op., Moore at 1 (Aug. 29, 2003); MS AG Op., Harness at 1 (Sept. 16, 2016); MS AG Op., Floyd at 1 (Sept. 8, 1989).

Notably, recusal by the kinsman does not alleviate a nepotism violation. MS AG Op., Turnage at 1 (Apr. 25, 2014) (citing MS AG Op., Gibson (Feb. 1, 2013) ("[O]ur office has repeatedly opined that a violation of the anti-nepotism statute will occur regardless of whether a board member recuses himself."); MS AG Op., Turnage at 1 (Apr. 25, 2014) ("With regard to your questions regarding recusal by the Mayor, a person's recusal from an employment decision by a board on which that person sits is not relevant, in any way, to whether the Nepotism Law is violated.").

Your second question, referencing an opinion issued by this office in 2017, asks whether the City is protected or insulated from liability resulting from its promotion of the above-referenced employee, in light of "the fact that your office did not advise us how to avoid violations of the nepotism law after request." Your request also notes that in seeking the 2016 opinion, you "specifically asked what must be done to avoid a future violation of Section 25-1-53." As an initial matter, in your 2017 opinion request, you asked two questions, with the second of such questions being: "Assuming the answer to the above question is in the affirmative, what must Council Member Jones do in order to avoid a future violation of Section 25-1-53 with regard to [the employee]" (emphasis added)? Your second question was premised on an affirmative response to your first question, and this office responded to your first question in the negative. MS AG Op., Turnage at *1 (July 21, 2017). Accordingly, your second question was moot. However, as noted in your request for the instant opinion, our 2017 opinion did refer you to the Mississippi Ethics Commission regarding potential conflicts of interest. Id.

While Section 7-5-25 provides both civil and criminal immunity, under certain circumstances, to the recipient of an official Attorney General's opinion, we are not aware of any such treatment for matters upon which this office has not opined.

Your third question asks whether a nunc pro tunc entry in the council minutes rescinding the promotion language is sufficient to cure a nepotism violation. This office has stated that "[t]he purpose of a nunc pro tunc order is to correctly evidence a previous action which was not accurately recorded." MS AG Op., Miller at 1 (Nov. 16, 2012) (citing MS AG Op., Chamberlin at 2 (Jan. 23, 2004); see also MS AG Op., Blackwell at 1 (Mar. 2, 1995) (finding a board may not use a nunc pro tunc order to retroactively approve actions). Whether an entry in the minutes regarding an employee's promotion is not an accurate reflection of the official action taken requires a factual determination that can only be determined by the Council. MS AG Op., Baum at 1 (June 7, 2019) ("Therefore, to the extent that your inquiries involve questions of fact . . . we are unable to respond by way of an Official Opinion").

If the Council determines, consistent with the facts, that a nunc pro tunc order is appropriate, and the order accurately evidences that the employee, related to the appointing authority within the third degree, was not appointed, promoted, or transferred, no violation of the nepotism statute will have occurred.

Because we did not answer your third question in the negative, your fourth question is moot.

If this office may be of any further assistance to you, please do not hesitate to contact us.

Sincerely,

LYNN FITCH, ATTORNEY GENERAL

By: /s/ Phil Carter
Phil Carter
Special Assistant Attorney General